253 F. 728 | 7th Cir. | 1918
Barring allegations which set forth the names of the plaintiffs in error and the time of the offense, the indictment proceeds:
1 in tlie county of St. Olair, in tlie state of Illinois, in Ike Eastern District aforesaid and. within the jurisdiction of said court,
2 did unlawfully and feloniously Break the seal of a certain railroad caí then and there bearing the name and number, to wit: “Southern 38005.”
8 which said car then and there contained an interstate shipment of freight, to wit: A large quantity of cigarettes,
4 then and there consigned and in transit from Winston-Salem, in the state of North Carolina, to Paris, and Peoria, in the state of Illinois, and Bagnell, Saint Louis, and Kansas City, in State of Missouri,
5 which said railroad car was then and there in tlie possession of the Southern, Kailway Company, a corporation, and common carrier then and there being,
8 with the unlawful and felonious intent then and there in them, the said [here naming) all the defendants! and each of them, to then and there commit larceny in said car.
As to the last four counts of tlie indictment, plaintiffs in error con'tend: (a) That each count of the indictment fails to state an offense of which the court had jurisdiction, (b) That the evidence fails to support a conviction on any one of said counts, (c) That the court erred in its charge to the jury, (d) That the verdict is repugnant due to the fact that the plaintiffs in error are found guilty on each of the counts in the indictment, whereas the eighth count is repugnant to each of the other counts.
As we construe this count and the others similarly worded, so far as the use of the word “there” is concerned, we unhesitatingly conclude that the government charged the plaintiffs in error with unlawfully breaking the seal of a box car located in the county of St. Clair, state of Illinois; that paragraphs 3 and 5 refer hack to paragraphs 1 and 2, and contain descriptive clauses modifying the car referred to in paragraph 2. So construed, the indictment is sufficient.
We conclude the evidence supports the verdict.
'
It further appears from the record that this'car seal was identified-as R J R, while tire witness who testified against his co-conspirators 6 described the seal of the car that was entered as being R J. This dis- ' 6 crepancy in the identification of the seal hardly justifies the argument of the counsel that the testimony affirmatively and conclusively establishes the innocence of his clients. The similarity in the identification marks suggests a corroboration of the witness’ other testimony rather than a negation thereof. Taken altogether, the evidence presented a jury question.
The contention that the evidence fails to show the car was routed as shown in count 5 must also be rejected. The undisputed facts, and such inferences as legitimately flow therefrom, amply justified the jury in finding the car traveled the route charged in the indictment. •
The criticism of the' charge to the jury is predicated upon a false assumption of fact.
Our failure to consider the first four counts of the indictment should not be construed as indicative of an opinion that the plaintiffs in error were not guilty of the crimes therein charged. Likewise it should not be assumed that we consider a conviction on count 8 as repugnant to
The judgment is affirmed.